The Court of Justice of the European Union and policy change: Analysing the influence of the CJEU on Justice and Home Affairs polices
The extent to which supranational courts, such as the Court of Justice of the European Union (CJEU), generate policy change, and can influence European Union (EU) legislation and national legislation has been an issue of long-term debate. Tinahy’s research endeavours to contribute to the policy and law literature by analysing how CJEU jurisprudence has influenced key Justice and Home Affairs (JHA) policy outputs before and after the 2009 Treaty of Lisbon (Trauner and Ripoll Servent, 2014:1142-1143). The central guiding research question is: To what extent, and under what conditions, does the Court of Justice of the European Union (CJEU) influence Justice and Home Affairs policy outputs?
The question of whether supranational courts are able to drive policy change (resulting in changes to the core of the policy and changes of secondary order) addresses the political impact of judicial decisions, and the transfer of decision-making powers to a non-majoritarian institution (Martinsen, 2015: 23). Tinahy’s research will use a constructivist (sociological institutionalism) approach to examine secondary EU legislation, CJEU case law, and findings from semi-structured elite interviews with civil servants involved in decision-making processes in key JHA sub-policy areas. The field of Justice and Home Affairs is a sensitive area of policy-making. JHA policies impinge upon the sovereignty of EU member states and the human rights and mobility rights of nationals and third country nationals (TCNs) (Wolff, 2015: 129-130). The influence of the CJEU on Justice and Home Affairs policies remains under-explored. Much of the existing literature (Ripoll Servent in Ripoll Servent and Trauner, 2018; Martinsen, 2015: 20-23) has focused on one specific area in isolation, such as asylum or social policy, which has limited the ability to draw wider patterns across JHA policy domains. For this reason, this research will focus on four main JHA sub-policy areas: immigration (family reunification), border control (the Schengen regime), asylum (the Dublin system), and data protection from 2005 to 2017.
13 – Politics, Public Policy & Governance